By the end of 2011, the Labor Department's worker safety agencies expect to issue six new rules to better protect workers from on-the-job hazards. In the Department's regulatory plan issued yesterday, OSHA projects it will finalize four rules while MSHA expects to complete two new standards. As I've written before, these plans quickly become stale because target dates are missed, new issues emerge and political winds shift, but they still give us a snapshot inside the agencies and the Administration's regulatory strategies at a moment in time.
Of the four rules OSHA expects to finish in the coming year, three of them have been in the works for at least four years. MSHA, in contrast, is focusing on two emergency temporary standards. Here's what OSHA is projecting for the new year:
By May 2011, a final rule to enhance provisions in OSHA's existing safety standards for workers involved in Electric Power Transmission and Distribution, including new requirements for personal protective equipment. OSHA started this rulemaking in 2003 during the GW Bush Administration.
By August 2011, a final rule to harmonize the labeling of and data sheets for chemical substances to be consistent with global standards. OSHA started this rulemaking in 2006 during the GW Bush Administration.
By November 2011, a final rule to protect construction workers from the hazards of confined spaces, like storage tanks and pipe work. A rule of this sort has been in place since 1993 for workers employed in manufacturing and other industries, but no such rule is on the books for construction workers.
OSHA also plans to publish an amendment to its injury recording requirements which would restore a column to denote work-related musculoskeletal disorders. In OSHA's Spring 2010 reg agenda, the agency projected finalizing this simple revision by July 2010, but the rule has been at OMB/OIRA for "review" for more than five months. OSHA's new target date for issuing the rule is February 2011.
At MSHA, plans are underway to issue a final rule in June 2011 on enhanced requirements for rock dust which is used in underground coal mines to prevent coal dust explosions. The urgency of this matter came to light after the April 5 explosion at the Upper Big Branch mine which claimed 29 lives. As Ken Ward at Coal Tattoo pointed out, NIOSH described the inadequacy of existing rock dust standards in 2006 and again in 2009.
MSHA's plan to issue this improved rule on rock dust is necessary in order to replace the emergency temporary (ETS) standard the agency issued in September 2010. Under the Mine Act (Section 101(a)(9)(b)) MSHA may issue an ETS, without notice and comment rulemaking, if it determines "that miners are exposed to grave danger" and the "emergency standard is necessary to protect miners from such danger." The ETS serves as the proposed rule, on which public comments are solicited, and a final rule must be published within 9 months. MSHA held public hearings on this proposal in November and the comment period ended yesterday.
Curiously in the Labor Department's preface to its regulatory plan, it says in one place:
"MSHA plans to issue an emergency temporary standard (ETS) covering the Maintenance of Incombustible Content of Rock Dust in Underground Coal Mines"
even though the agency has already done so. In a different part of the document, the Department says:
"MSHA issued an emergency temporary standard (ETS) in response to the grave danger that miners in underground bituminous coal mines face when accumulations of coal dust are not made inert."
There are a couple of other places in the Labor Department's preface that suggest it was prepared months ago and has been caught-up in administrative or political limbo (i.e., describing things that will happen when they've already happened.)
The Executive Order that directs this regulatory planning says that agencies submit their plans to OMB/OIRA in June, and the document is supposed to be published in October. This year, the Administration's reg czar sent new instructions to the agency's in July, and their plans were supposed to be revised and submitted by mid-September. This may have something to do with the tardiness of this year's publication of the reg agendas---instead of being published in October, we saw them on December 20---and the errors, like the one mentioned above.
Those who were expecting some fast-track action on combustible dust, reactive chemicals, worksite-specific injury and illness prevention programs (I2P2), or other topics, you may be disappointed. The wheels of OSHA rulemaking continue to turn slowly.
For combustible dust, the next step before OSHA can even propose a rule is convening a panel of small business representatives to review proposed regulatory text and a draft assessment of economic impacts. OSHA expects to do this in April 2011, the same deadline it set for itself in its Spring 2010 regulatory agenda.
For I2P2, OSHA projects convening a panel of small business representatives in June 2011 to review proposed regulatory text and a draft assessment of economic impacts. The Chamber of Commerce and others (here, here) have been trying to rile up the business community to oppose this not-yet-even proposed OSHA action. Anyone looking at the agency's reg plan can see that the I2P2 rule is not on any fast track.
For those interested in OSHA's regulatory plans to address the hazards for workers exposed to butter-flavoring agents, including diacetyl, a target date for action has slipped. OSHA's previous reg agenda (Spring 2010) noted the agency's plan to initiate peer review in October 2010 of a risk assessment of diacetyl. In this latest reg agenda, OSHA suggests that it won't be conducting a peer review of its risk assessment because it hasn't yet finished preparing it. OSHA now says it plans to rely on portions of a NIOSH's criteria document on diacetyl and 2,3-pentanedione to prepare its risk assessment. OSHA notes that NIOSH will begin a peer review of this criteria document in April 2011. This suggests to me that it will be much later in the year before OSHA would use the NIOSH document for its own purposes.
MSHA says it plans to publish an emergency temporary standard in March 2011 to require mine operators to install proximity detection devices on underground mobile equipment. (I'll be curious to read how MSHA makes the case for a "grave danger" when they are proposing to wait several months before taking this action. The Labor Department's preface to this reg agenda says that "immediate action is necessary.") The Labor Department also notes that OSHA will also develop a proposed rule to address similar hazards for construction workers, and the two agencies will collaborate as they prepare their respective rules.
OSHA and MSHA also describe a number of regulatory initiatives they plan to propose in 2011, including rules on silica (OSHA here, MSHA here), modernizing OSHA reporting requirements (here,, here) and MSHA's pattern of violation (POV) criteria and procedures (here) for mine operators who are chronic violators of safety regulations. We'll keep you posted on how well the agencies meet their target dates for these rules, and whether the new congressional landscape influences (actual or perceived) the Administration's pursuit of these regulatory priorities.
But will anything really change? OSHA has tried to regulate exposure to harmful substances but the powerful the big- business lobby has repeatedly thwarted those efforts.